ABDUL RAHIM AND Other vs HOME SECRETARY, GOVERNMENT OF WEST

1. MUHAMMAD GUL, J.-The question which falls for examination in this appeal by special leave is, whether order dated 23-7-1964, by the Home Secretary to the former Government of West Pakistan, affirming in the purported exercise of his revisional jurisdiction under clause (4) of the Article 223 of the 1962 Constitution an order dated 31-1-1963, made by the Political Agent, Dir, Swat and Chitral, exercising the powers of Regent of Chitral, in a dispute relating to land situate in what was then the Chitral State was amenable to the jurisdiction of the High Court under Article 98 of that Constitution in view of the bar contained in clause t5) of Article 223 ? Leave was granted on 21-12-1966, because the matter was then of first impression in this Court.

2. The facts as found by the Political Agent, Dir, Swat and Chitral, in his order dated 31-1-1963, are these : One Mir Lai, a resident of village Kuju in the then State of Chitral died sonless and brotherless more than fifty years ago, leaving him surviving four daughters. He owned considerable landed property in a number of villages in the State. Under, the local custom then prevalent in the State, the entire land of a person dying without a male issue or a brother devolved upon the Ruler, the Mehtar and became "Mehtari" land to the exclusion of any other relatives of the deceased even including his daughter. The land thus vesting in the Mehtar was given in "mehrbani" (ex--gracia) to relatives of the deceased and even to the strangers who happened to enjoy the favour of the ruling Mebtar.

3. It appears that after the .Death of Mir Lai, a part of his land was given to his maternal grandson, Mir Samad Khan of Ragh. Later, in 1916, the same land was given to Mir Gulab Shah, who though not directly related to the deceased, claimed the land under a gift in favour of his mother by the eldest daughter of Mir Lai. The land remained in possession of Mir Ghulab Shah until 1937, when it was restored to the sons of Mir Samad Khan, by the then ruling Mehtar.

4. The possession of the land was then transferred to Muhammad Isa and Abdul Jalal who traced their decent to a cousin of Mir Lai deceased: Later, in 1949, the ruling Mehtar (H. H. Saifur Rehman) ordered that the land should be taken back from the possession of Muhammad Isa and Abdul Jalal and restored to the sons of Mir Samad Khan aforesaid. The dispute ultimately came before the Political Agent, Dir, Swat and Chitral in his capacity as the Regent, who after tracing the history of the land, by order dated 31-1-1963, directed that the entire land should be treated as Mehtari land, half of which should be given on annnal Ijara (lease) to the male descendants of Mir Samad Khan and the other half to Mir Gulab Shah. On a revision by the grandsons of Mir Samad Khan (appellants herein), the Home Secretary, affirmed the order of the Political Agent on 23-7-1964, upholding the view taken by the Regent that under the local custom on the death of Mir Lai, his entire land had become, "Mehtari land", and that, therefore, the Provincial Government had no jurisdiction to interfere with the order passed by the Regent on behalf of the ruling Mehtar.

5. Aggrieved by the above order, the appellants who are the grandsons of Mir Samad Khan moved writ petition before Peshawar Bench of the former High Court of West Pakistan, which was dismissed in limine on 22-3-1966, on the short ground that the land in dispute being situate in the tribal territory where the parties to the dispute are also residents, is not amenable to the writ jurisdiction of the High Court, notwithstanding the fact that the final order sought to be challenged was made by the Home Secretary to the Provincial Government who was located within the territorial jurisdiction of the High Court.

6. Sar Khan v. The State (PLD 1967 SC 149) and Piao Gul v. The State (PLD 1960 SC 307) and submitted that these judgments were authority for the view that it is the location of the officer making the impugned order which determines the jurisdiction of the Court for the relevant purpose, regardless of the fact that the subject-matter of the dispute and the parties thereto were outside the territorial limits of the Court.

7. The argument, in our opinion, does not proceed on a correct under--standing of the two precedent cases in which the facts were wholly different. The first case was an appeal arising out of a petition for habeas corpus of a person who was tried under section 11, F. C. R. For an offence under section 307, P. P. C. Committed in Tribal Area. The trial was held by the Jirga which met at Peshawar but sentence was pronounced at Jamrud in the Tribal area by A. D. M., Peshawar, as Political Agent, Khyber Agency. The convict was then lodged in Abbottabad Jail to suffer his sentence. It was in these circumstances that this Court ruled that the writ of the High Court is fully operative in Peshawar where the trial was held and further the convict being actually imprisoned within the territory where the writ of the High Court ran, it had power in certiorari to examine the legality and propriety of conviction and had also power under habeas corpus to examine the authority for imprisonment, despite the fact that source of authority lay outside its territorial jurisdiction. On the same basis Piao Gul's case is distinguishable. In that case too, the prisoner was tried at Peshawar under section 8(b) of the N.-W. F. P. Corps Law, 1941 by the Political Agent exercising the powers of Sessions Judge. The Political Agent, however, pronounced the judgment at Jamrud, in the tribal area. After his conviction the prisoner was lodged in Dera Ismail Khan Jail. It was in these circumstances that it was held that the case was amenable to the writ jurisdiction of the High Court.

8. The facts of the instant case on the other hand are closely similar to those of Umar Gul v. The State (PLD 1973 SC 544In that casd the dispute related to the share of produce of land situated in Dir State between two tribes. It came up for decision before the Political Agent whose decision was challenged by a writ petition in the High Court under Article 98 of the 1962 Constitution. The petition was dismissed in limine by the High Court on the short ground that the Court had no jurisdiction to entertain it in view of the prohibitory provision of clause (5) of Article 223 of the 1962 Constitution.

9. This view was upheld by this Court. A similar view was taken in Jamil Ahmad v. State (PLD 1969 SC 344) in which the principle laid down in Piao Gul's case was also explained and it was observed that if a cause of action has arisen within the territorial jurisdic--petition of the High Court, as for instance any person is arrested or detained within those territories without lawful authority, the High Court will certainly have the jurisdiction to interfere in writ jurisdiction to examine the legality and lawful authority of that action. The broad distinction between two sets of cases, is the situs or the location of corpus of the dispute.

10. It would be useful to refer to the provisions of clause (5) of Article 223 of the 1962 Constitution it read "(5) Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."

11. This clause was inserted by First Amendment, 1963 (Act I of 1964). The first thing to be noticed is the non-obstante clause in the beginning of the above Constitutional provision, which gives it an overriding effect over other pro-' visions of the Constitution including that relating to the writ jurisdiction of the Nigh Court. The prohibition is against the exercise of jurisdiction "in relation to a Tribal Area". This is not an expression of art like the expression "cause of action", which has a well defined meaning and therefore, has a limited import. The words "in relation to" on the other hand are of wide import and postulate of a connection of one thing with another: a nexus. The question therefore is whether there is such a connection or neaps between the subject--matter of the dispute and the former State of Chitral. In this context the situs of the land and the residence of the two sets of claimants become decisive. The location of the land in dispute and the residence of the parties plainly establishes this nexus or relationship for the relevant purpose.

12. Besides, in the instant case, all material actions were taken in the tribal territory on the basis of the local custom having the force of law where the land in dispute is also situate. The mere fact that the final order sought to be challenged in this case was that of the Home Secretary, West Pakistan dated the 23rd July 1964 would not snap the relationship of the dispute with theformer State of Chitral, and bring the matter within writ jurisdiction of the High Court. On this aspect of the question, the law was laid down by the Privy Council as far back as 1943 in Ryots of Garabandino and others v. Zamindar of Parlakimedi and another (AIR 1943PC 164 ) wherein it was held that the Madras High Court which exercised its local jurisdiction within the Presidency town of Madras, had no power to issue writ of certiorari in respect of proceedings for settling fair and equitable rent under a local law, by the special officer of District of Ganjam, although the final order sought to be challenged was made in revision by the Collective Board of Revenue, sitting in Madras. This case is an authority for the view that the seat of the authority at the apex cannot be a decisive for the relevant purpose. The matter has to be looked into from the point of view of its substance and not its mere form. Any other view will be a circumvention of an express prohibition in the Constitution.

13. It remains to be said that the question debated in this appeal is now of academic interest only.

14. With the coming into force of the Supreme Court and High Courts (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973 (Act XXVII of 1973), the normal jurisdiction of the Peshawar High Court, B including the Constitutional jurisdiction under Article 199 of the Constitution, now extends to the Provincially Administered Tribal Areas of Chitral, Dir, Swat and Malakand Protected Area, as the Court has "in the other areas of' the North-West Frontier Province". But the Act came into force on the 9 February 1973, and it does not operate retrospectively.th For the foregoing reasons, the appeal is dismissed but the parties are left to bear their own costs. K.

15. B. A.